Sometimes the most surprising thing about a Supreme Court case is that the Court had not already resolved the issue years before. This struck me first in 1996 when several sheriffs challenged the Brady Bill as violating the Tenth Amendment. The law required local law enforcement officers to conduct background checks on handgun purchasers. In essence, the federal government was tasking local government officials with the job of implementing a federal law. Does our system of federalism permit that? More than 200 years after ratification of the Constitution, the Court had never spoken to the issue. Only after the 5-4 opinion in Printz v. United States, 521 U.S. 898 (1997), did we finally have an answer. (No, as it turned out.) Similarly, who would have thought that the meaning of the Second Amendment, ratified in 1791, would not be explicated until 2008?

I bring this up because the Court decided a case this Term ― Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) ― whose most striking feature is that it needed to be decided at all. Who would have thought that, 44 years after Miranda, the Court still had not told us whether the police may continue questioning a suspect who, after being told his rights, stayed silent? And what happens when a suspect remains quiet for a while, later answers an officer’s question, and the answer is then used against him at trial? Does the answer constitute a waiver of the right to remain silent? Or does the long silence prior to the answer amount to an invocation of the right to remain silent, which would bar further police questioning (even if some initial questioning were permissible)? Remarkably, the Court had barely spoken to these issues in the years since Miranda. Now, thanks to Thompkins, we have definitive answers ― ones that are very favorable to law enforcement.

Background. Police suspected that Van Chester Thompkins fired multiple shots into a crowd of people outside a shopping mall in Southfield, Mich., one of which killed Samuel Morris. They eventually found Thompkins in Ohio, where two Michigan officers advised him of his Miranda rights. They then proceeded to question Thompkins for about two hours and forty-five minutes. Thompkins remained silent throughout most of the interrogation, indicating little more than that “the chair he was sitting in was hard” and declining an offer of a peppermint.

At the end of the questioning, however, one of the detectives asked Thompkins if he believed in God; Thompkins said “yes.” The detective asked if he prayed to God; Thompkins again said “yes.” Finally, the detective asked “Do you pray to God to forgive you for shooting that boy down?” to which Thompkins replied “yes.” Thompkins refused to make a written confession, and the interview ended about 15 minutes later. The trial court refused to suppress the statement, and a jury convicted Thompkins of first-degree murder and other offenses. The state courts affirmed the conviction, but the Sixth Circuit granted habeas relief on the ground that Thompkins’ responses, after almost three hours of virtual silence, did not constitute a waiver of his right to remain silent. In an opinion by Justice Kennedy, the Supreme Court reversed.

The Legal Issues. Although Michigan’s cert petition only presented the question of waiver, the briefing made clear that the case presented three distinct questions: (1) Did Thompkins invoke his right to remain silent by remaining silent for so long? (2) May police interrogate a suspect who has received Miranda warnings, has not expressly waived his right to remain silent, and then does not answer questions? (3) Did Thompkins validly waive his Miranda rights when he finally answered questions, almost three hours into the interrogation?

Viewers of Law and Order, CSI, NYPD Blue and the like could be forgiven for assuming that the police of course can question a suspect after issuing the Miranda warnings ― and can continue for some time without having to get any answers to their questions. It appears to be common practice however, for law enforcement officers to ask suspects to sign waiver forms immediately after the warnings are given. Once the form is signed, these legal issues disappear. And if a suspect says “I don’t want to talk” or “I want a lawyer,” the questioning must cease. The legal issues contested in Thompkins only arise when a suspect neither expressly waives his Fifth Amendment rights nor expressly invokes them. The absence of prior Supreme Court authority on these issues suggests that this does not happen as often as one might think.

The Prior Case Law. Miranda itself contains language favorable to Thompkins’ position. The Court in Miranda stated that “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” The Court continued: “An express statement that an individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact actually obtained.” Moreover, stated the Court, “the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights.”

That language strongly suggests that if Thompkins came before the Court shortly after Miranda ― say, in 1967 ― the Court would have ruled against the government. But, as the Court explained in Dickerson v. United States, 530 U.S. 428, 443-44 (2000), when it reaffirmed Miranda, “our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.” The times they a changed.

Two post-Miranda cases are particularly noteworthy in how they trimmed some of Miranda’s edges. First, in North Carolina v. Butler, 441 U.S. 369 (1979), the Court held that a Miranda waiver can be implied from all the circumstances, and need not be express. Butler did not definitively resolve this case because (1) the suspect in Butlerbegan answering questions immediately, and (2) Butler involved the right to counsel, not the right to remain silent. But Butler was an important step away from the expansive language from Miranda implying that even an express waiver merely “could” suffice. Second, in Davis v. United States, 512 U.S. 452 (1994), the Court held that an accused who wants to invoke his right to counsel must do so “unambiguously.”

Taken together, Butler and Davis make it easier to find a waiver of Miranda rights and harder to find an invocation of those rights. Thompkins took those developments to the next level.

The Thompkins Decision. The Court divided 5-4 on the case, with the “conservatives” (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) in the majority, and the “liberals” (Justice Stevens, Ginsburg, Breyer, and Sotomayor) in dissent. Not surprisingly, the majority relied on the post-Miranda trajectory of the case law; the dissent relied on Miranda itself.

Invocation. Justice Kennedy’s opinion for the majority first tackled the invocation issue: Did Thompkins’ long silence constitute an invocation of the right to remain silent, such that the officers had to stop their questioning? The Court held that it did not, and made new law by holding that the Davis standard ― requiring an invocation of the right to counsel to be unambiguous ― applies to the right to remain silent. This rule, the Court found, provides clarity and therefore guidance to officers and courts, while not making interrogations any more coercive.

Some commentators have ridiculed this result, writing articles with headlines such as “Suspects must speak to remain silent, says Supreme Court.”[1] That misses the point. The Miranda warnings tell a suspect he has the right to remain silent. And they are free to exercise that right by remaining silent. If, however, a suspect wishes to invoke the right such that police questioning must end, the suspect must let the officers know. How else would the officers know they must cease questioning?

Waiver. The Court acknowledged that Miranda contained language that supported Thompkins’ assertion that he did not waive his right to remain silent when he responded to the detective’s questions about God. The Court concluded, however, that Butler established that waivers may be implied. The only question, therefore, was what showing the government must make to establish an implied waiver.

Once again, the Court adopted an easy-to-apply rule: “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” The Court found that standard met here, finding no basis upon which to conclude that Thompkins did not understand his rights.

The Court’s standard for finding an implied Miranda waiver is consistent with the Court’s general approach to waivers of fundamental rights, which looks to whether the waiver was knowing and voluntary. Still, it meant backing off language from Miranda that suggested a far higher hurdle before finding a valid waiver.

Police Questioning. Finally, the Court tackled Thompkins’ contention that, “even if his answer to [the detective] could constitute a waiver of his right, the police were not allowed to question him until they obtained a waiver first.” Not so, ruled the Court. Butler held that waivers can be implied from a suspect’s actions during questioning. “This principle would be inconsistent with a rule that requires a waiver at the outset.”

In permitting police questioning even absent a waiver at the outset, the Court made a few observations worth noting. First, the Court reiterated that “the primary protection afforded suspects subject[ed] to custodial interrogation is the Miranda warnings themselves.” Second, the Court pointed to the benefits to the suspect of interrogation. “Interrogation provides the suspect with additional information that can put his or her decision to waive, or not to invoke, into perspective.” Questioning gives the suspect “the opportunity to consider the choices he or she faces and to make a more informed decision, either to insist on silence or to cooperate.” Both observations suggest the Court may be amenable to further trimming of Miranda-related rules.

The Dissent. Justice Sotomayor authored the dissent, which was her most powerful piece of writing since she has been on the Court. In forceful terms, she showed how the Court’s decision cannot be reconciled with the language of Miranda and explained why Butler did not retreat from Miranda nearly as far as the majority suggested. Justice Sotomayor also noted that, because this is a federal habeas corpus case governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), the Court did not need to resolve any of the three issues upon which it ruled. The Court could simply have held that the state court’s decision in this case was not objectively unreasonable within the meaning of 28 U.S.C. §2254(d)(1), and ruled for the state on that ground.

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In the end, Thompkins is an illustration of how constitutional law evolves. A new rule is announced. Over time, as the rule is put into practice, the Court fine tunes it, sometimes adding layers, sometimes subtracting components that prove unnecessary or too burdensome. Not every accretion to, or erosion of, the rule is compelled by precedent. But the changes typically follow a trajectory, as the Court tries to move the law to a point of equilibrium, at least for the current generation. With Thompkins, the Court has almost reached the Miranda equilibrium point.